Attorney: Feds’ spying case against NOAA employee ‘doesn’t hold water’


Attorney: Feds’ spying case against NOAA employee ‘doesn’t hold water’

Attorneys for the Wilmington hydrologist accused of accessing sensitive United States government dams files argued that federal prosecutors shouldn’t be allowed to present “background noise” evidence about her connections to China.

Xiafen “Sherry” Chen on Thursday pleaded not guilty to one count of theft of U.S. government property, two counts of accessing without authority a protected U.S. government computer to obtain information and five counts of making materially false statements to federal investigators stemming from a Jan. 15 superseding indictment.

Attorney Peter Zeidenberg said Chen was not charged with espionage, even if the government’s investigation into Chen may have started with that hypothesis. He argued that someone who monitors Ohio Rivers would have legitimate reasons to download information from the National Inventory of Dams. He said prosecutors have no evidence that Chen gave that information to anyone, let alone a colleague in China.

Zeidenberg also said Chen asked her National Oceanic and Atmospheric Administration (NOAA) supervisors about where publicly-available information was and only sent emails with such data — even referring her Chinese colleague to Deborah Lee, the chief of water management for the U.S. Army Corps of Engineers’ Great Lakes and Ohio River Division.

“The government theory doesn’t hold water,” Zeidenberg told U.S. District Court Judge Thomas Rose while asking that certain evidence be precluded. “They shouldn’t be able to trot this out in front of a jury.”

Assistant U.S. attorney Brent Tabacchi countered Chen accessed a database for a personal reason, not for a work purpose. Assistant U.S. attorney Dwight Keller added that the standard of such a motion to preclude didn’t exclude prejudicial material, only “unfairly” prejudicial material.

Prosecutors wrote that evidence around Chen is “inextricably intertwined with these offenses or is probative of her prior knowledge and criminal intent to commit each of said crimes.”

Government prosecutors withdrew a motion aimed at discovering any third party paying for Chen’s defense when Zeidenberg said Chen was borrowing money from friends and family.

Both sides argued about defense motions to dismiss three counts and the motion to preclude evidence. Both sides have until Feb. 18 to file subsequent points with Rose. The original indictment against Chen was from Oct. 15, 2014.

The judge kept the final pretrial scheduled for Feb. 25 and the trial scheduled for March 16.

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